Estate of Anthony Anderson et al v. Strohman et al

Filing 94

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 7/27/2016. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ESTATE OF ANTHONY ANDERSON,
SR., et al.,

:
:

Plaintiffs,
:
v.

Civil Action No. GLR-13-3167
:

TODD STROHMAN, et al.,
:
Defendants.
:
MEMORANDUM OPINION
THIS MATTER is before the Court on Plaintiffs’, the Estate
of Anthony Anderson, Sr. (the “Estate”) and Anderson’s seven
surviving immediate family members,1 Motion for Leave to Amend
Complaint (ECF No. 91) and Motion for Summary Judgment (ECF No.
77).

Also pending before the Court are three Motions filed by

Defendants,

Officers

Todd

Strohman

and

Michael

Vodarick

(collectively, the “Officers”): (1) Motion in Limine to Exclude
Certain Opinions of Plaintiffs’ Medical Experts (ECF No. 78);
(2) Motion for Partial Summary Judgment on the Issue of Whether
Alleged Kicking Contributed to the Death of Anthony Anderson
(ECF No. 79); and (3) Motion for Partial Summary Judgment on Any
Claim for Alleged Deprivation of Medical Care (ECF No. 80).

All

Motions

the

1

are

now

ripe

for

disposition.

Having

reviewed

The “Family-Member Plaintiffs” include Anderson’s mother,
Edith Fletcher; father, Leon Anderson; three sons, Anthony
Anderson, Jr., Marcus Pettiford, and Terrence Manocky; and two
daughters, Yvonne and Jean Anderson.

Motions and supporting documents, the Court finds no hearing
necessary.

See Local Rule 105.6 (D.Md. 2016).

For the reasons

outlined below, the Court will grant in part and deny in part
Plaintiffs’

Motion

for

Leave

to

Amend

Complaint,

deny

Plaintiffs’ Motion for Summary Judgment, and grant the Officers’
Motions.
I.

BACKGROUND

Around 6:00 p.m. on September 21, 2012, Anderson walked to
a

neighborhood

liquor

store

in

alcoholic beverages for his wife.
half

later,

Anderson

Hospital

(“JHH”).

accounts

of

what

was
The

East

transpired

to

purchase

Approximately one hour and a

pronounced
parties

Baltimore

dead

offer

between

at

Johns

utterly

Anderson’s

Hopkins

conflicting
trip

to

the

liquor store and his tragic demise.
According to Plaintiffs, when Anderson exited the liquor
store, he spoke to some acquaintances from his neighborhood and
exchanged a tobacco-filled cigarette.

Anderson then proceeded

home, walking across a dirt trail on a vacant lot between Biddle
Street and North Montford Avenue.

Unbeknownst to Anderson, the

Officers, who were patrolling the area in an unmarked vehicle,
had exited their vehicle and begun following him down the trail.
Without announcing his presence or issuing any orders, Officer
Strohman grabbed Anderson from behind and placed him in a bear
hug, pinning Anderson’s arms to his sides.
2

Officer Strohman

then lifted Anderson two feet in the air and violently slammed
him to the ground head and neck first.

Officer Strohman landed

on top of Anderson, and Anderson, immobilized by the bear hug,
was unable to brace himself for the impact with the ground.
While Anderson was still on the ground, Officer Strohman placed
handcuffs on him.

The Officers then repeatedly kicked Anderson

until he was unconscious.
According to the Officers, they were patrolling the area
near the liquor store because it was a high-crime area known for
illicit drug activity.

The Officers observed Anderson engaging

in what they believed to be a controlled dangerous substance
(“CDS”) transaction.
walking

away

from

When Anderson saw the Officers, he began

the

liquor

store.

Officer

Strohman

then

identified himself as a police officer and ordered Anderson to
stop,

but

quickening

Anderson
his

ignored

pace.

him

Officer

and

continued

Strohman

walking

exited

the

police vehicle and again ordered Anderson to stop.

away,

unmarked

This time,

Anderson turned around to look at Officer Strohman, then turned
back around and, while continuing to walk away at a brisk pace,
pulled a plastic baggie from his pocket and began ingesting what
the

Officers

believed

to

be

CDS.

To

prevent

Anderson

from

destroying evidence and potentially overdosing himself, Officer
Strohman came up from behind Anderson and bear-hugged him to
prevent him from ingesting the suspected CDS.
3

Anderson briefly

struggled

by

widening

his

stance,

at

which

point

Officer

Strohman leaned back to get Anderson off balance and the two
fell to the ground.2

Officer Strohman then handcuffed Anderson

and sat him upright.

The Officers deny kicking Anderson at any

point during their interaction.3

When Anderson began to look

ill, the Officers called an ambulance.
Paramedics eventually arrived on the scene and transported
Anderson

to

JHH

where

medical

personnel

determined

that

his

spleen had been severely ruptured and a large amount of blood
was pooling in his abdomen.
approximately

7:30pm.

The

Anderson was pronounced dead at
Medical

Examiner

ruled

Anderson’s

manner of death as “homicide” and his cause of death as “blunt
force injuries of torso.”
78-6).

(Mot. in Lim. Ex. D, at 1, ECF No.

A toxicology report conducted after Anderson’s death

revealed that he had 100 mcg/L of free morphine in his system.
(Id. Ex. E, at 1, ECF No. 78-7).
indicates

Anderson

had

ingested

The Officers contend this
heroine,

while

Plaintiffs

maintain this could indicate Anderson had merely ingested overthe-counter pain relievers.
2

Though the manner in which Officer Strohman took Anderson
to the ground is disputed, for ease of reference, the Court will
refer to this act as the “Takedown.”
3
The Officers concede, however, that when Anderson was
sitting on the ground in handcuffs, Officer Vodarick may have
tapped Anderson with his foot to get his attention.
(See
Vodarick Dep. 61:7–15, June 4, 2015, ECF No. 77-13); (Vodarick
Dep. 48:7–8, June 4, 2015, ECF No. 78-3); (Strohman Dep. 83:2–6,
Dec. 10, 2014, ECF No. 78-4).
4

Plaintiffs

initiated

this

action

on

October

24,

2013,

raising, among other claims, survivor and wrongful death claims
under federal and state law and seeking $20 million in damages.
(ECF No. 1).

In addition to Officers Strohman and Vodarick,

Plaintiffs sued Officer Gregg Boyd, the Mayor and City Council
of

Baltimore,

(Id.).

The

and

the

Court

Baltimore

dismissed

Police

the

Mayor

Department
and

City

(“BPD”).

Council

of

Baltimore and Officer Boyd on March 19, 2014 and May 11, 2015,
respectively.

(ECF

Nos.

22,

52).

Only

two

claims

remain

against the BPD: 42 U.S.C. § 1983 (2012) survivor and wrongful
death

claims

for

excessive

use

of

force

Anderson’s arrest (Counts XXXIV, XXXVI).

during

and

after

The Court stayed these

claims on June 19, 2014 pending the resolution of the claims
against the Officers.

(ECF No. 35).

The following claims remain against the Officers: (1) a
survivor claim by the Estate for violations of Articles 24 and
26 of the Maryland Declaration of Rights (Counts I, II); (2)
wrongful

death

claims

by

the

Family-Member

Plaintiffs

for

violations of Articles 24 and 26 of the Maryland Declaration of
Rights (Counts V, VI, IX, X, XIII, XIV, XVII, XVIII, XXI, XXII,
XXV, XXVI, XXIX, and XXX); (3) a § 1983 survivor claim by the
Estate

for

violations

of

Anderson’s

federal

constitutional

rights (Count XXXIII); (4) a wrongful death claim by the FamilyMember Plaintiffs for common law battery (Count XXXVII); and a
5

(5) survivor claim by the Estate for common law battery (Count
XXXIX).
On January 18, 2016, Plaintiffs filed a Motion for Summary
Judgment (ECF No. 77).

On January 19, 2016, the Officers filed

a Motion in Limine to Exclude Certain Opinions of Plaintiffs’
Medical

Experts

(ECF

No.

78),

Motion

for

Partial

Summary

Judgment on the Issue of Whether Alleged Kicking Contributed to
the

Death

of

Anthony

Anderson

(ECF

No.

79),

and

Motion

for

Partial Summary Judgment on any Claim for Alleged Deprivation of
Medical Care (ECF No. 80).

Plaintiffs filed Oppositions to the

Officers’ Motions on February 23, 2016 (ECF Nos. 85, 86).

On

this same date, the Officers submitted an Opposition to the
Plaintiffs’ Motion for Summary Judgment (ECF No. 84), to which
Plaintiffs filed a Reply on March 11, 2016 (ECF No. 89).

Also

on March 11, 2016, the Officers filed a Consolidated Reply in
Further Support of their Motions (ECF No. 88).

Plaintiffs filed

a Motion for Leave to Amend Complaint on April 11, 2016 (ECF No.
91).

The Officers filed an Opposition on April 28, 2016 (ECF

No. 92), and Plaintiffs submitted a Reply on May 16, 2016 (ECF
No. 93).
II.
A.

DISCUSSION

Plaintiffs’ Motion for Leave to Amend
In

regarding

their
the

Complaint,
Officers’

Plaintiffs

interactions
6

present
with

the

no

allegations

paramedics

who

responded

to

the

scene

of

Anderson’s

personnel at JHH who treated Anderson.

arrest

or

the

medical

Nevertheless, Plaintiffs

now maintain that the Officers intentionally misrepresented that
Anderson was suffering from a suspected drug overdose rather
than an assault and interfered with the paramedics’ ability to
assess and treat Anderson by initially refusing to remove his
handcuffs.

Plaintiffs

misrepresentations

and

further

contend

interference

contributed to Anderson’s death.

that

caused

the

or

Officers’

substantially

Plaintiffs move for leave to

amend their Complaint by adding these allegations.

They also

request leave to add allegations of § 1983 bystander liability
and

substitute

Shayner

Anderson

for

Edith

Fletcher

as

the

personal representative of Anderson’s estate.
According to the Scheduling Order, the deadline for moving
to amend the pleadings was June 8, 2014—over two years ago.
(See ECF Nos. 24, 28).

Because Plaintiffs have moved to amend

their Complaint after this deadline, they have the burden of
satisfying a two-prong test.

Odyssey Travel Ctr., Inc. v. RO

Cruises, Inc., 262 F.Supp.2d 618, 631 (D.Md. 2003).
prong

is

Federal

Rule

of

Civil

Procedure

The first

16(b)(4),

which

provides that “[a] schedule may be modified only for good cause
and with the judge’s consent.”

Id.

“[A] court’s scheduling

order ‘is not a frivolous piece of paper, idly entered, which
can

be

cavalierly

disregarded

by
7

counsel

without

peril[.]’”

Rassoull v. Maximus, Inc., 209 F.R.D. 372, 374 (D.Md. 2002)
(quoting Potomac Elec. Power Co. v. Elec. Motor Supply, Inc.,
190 F.R.D. 372, 375–76 (D.Md. 1999)).
analysis

under

Rule

16(b)(4)

is

Thus, the good cause

“less

concerned

with

the

substance of the proposed amendment” and more concerned with
“the timeliness of the amendment and the reasons for its tardy
submission.”

Id.

at

373–74.

Indeed,

“[t]he

primary

consideration of the Rule 16(b) ‘good cause’ standard is the
diligence of the movant.”

Id. at 374.

“Lack of diligence and

carelessness are ‘hallmarks of failure to meet the good cause
standard.’”

Id. (quoting W.Va. Hous. Dev. Fund v. Ocwen Tech.

Xchange, Inc., 200 F.R.D. 564, 567 (S.D.W.Va. 2001)).
party

was

not

diligent

in

seeking

order, “the inquiry should end.”

to

modify

the

If a

scheduling

Id. (quoting Marcum v. Zimmer,

163 F.R.D. 250, 254 (S.D.W.Va. 1995)).
There is good cause for amending

a complaint after the

scheduling order deadline when “at least some of the evidence
needed for a plaintiff to prove his or her claim did not come to
light until after the amendment deadline.”

Tawwaab v. Va. Linen

Serv., Inc., 729 F.Supp.2d 757, 768 (D.Md. 2010).

The Court may

consider the following factors when determining whether there is
good cause: “danger of prejudice to the non-moving party, the
length

of

delay

and

its

potential

impact

on

judicial

proceedings, the reason for the delay, and whether the movant
8

acted in good faith.”

Id. at 768–69 (quoting Rothenberg v.

Marriott Int’l, Inc.,

No. CCB-08-173, 2008 WL 687033, at *1

(D.Md. Feb. 29, 2008)).
Once
untimely

a

plaintiff

amendment,

has

the

demonstrated

plaintiff

then

satisfying the second prong: Rule 15(a).
at 631.

good
bears

cause

an

burden

the

for

of

Odyssey, 262 F.Supp.2d

Under this Rule, “[t]he court should freely give leave

[to amend a complaint] when justice so requires.” Fed.R.Civ.P.
15(a)(2).

Although the Federal Rules favor granting leave to

amend, the decision lies within the sound discretion of the
district court.

Medigen of Ky., Inc. v. Pub. Serv. Comm’n of W.

Va., 985 F.2d 164, 167–68 (4th Cir. 1993) (citing Nat’l Bank v.
Pearson, 863 F.2d 322, 327 (4th Cir. 1988)).
properly

denied

when

amendment

would

Leave to amend is

prejudice

the

opposing

party, the moving party has exhibited bad faith, or amendment
would be futile.

Edell & Assocs., P.C. v. Law Offices of Peter

G. Angelos, 264 F.3d 424, 446 (4th Cir. 2001) (citing Edwards v.
City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)).
The Officers consent to substituting Shayner Anderson as
the personal representative of the Estate, recognizing it is
appropriate
August

to

2015.

Officers,

bad

do

so

because

Finding

good

faith,

or

Edith
cause

Fletcher
and

futility,

9

no

the

passed

away

prejudice
Court

will

to

in
the

grant

Plaintiffs’

Motion

as

it

pertains

to

substituting

Shayner

Anderson for Edith Fletcher.
The Officers oppose Plaintiffs’ request to add allegations
of failure to provide medical care and bystander liability.
their Reply,

Plaintiffs argue

In

there is good cause for their

proposed amendment because the facts concerning the Officers’
alleged

misrepresentations

to

and

interference

with

the

paramedics did not “fully materialize” until Plaintiffs deposed
paramedic Lenore Scharf.4
Compl. at 6, ECF No. 93).
September

11,

leave to amend.

2015—seven

(Reply to Mot. for Leave to Amend
But, Plaintiffs deposed Scharf on
months

before

Plaintiffs

moved

for

(Scharf Dep., Sept. 11, 2015, ECF No. 77-12).

And, what is more, Plaintiffs knew as early as February 2015
that

the

Officers

told

the

paramedics

that

the

Officers

suspected Anderson was suffering from a drug overdose.

(Narrett

Dep. 11:13–21, Feb. 16, 2015, ECF No. 78-12).

4

The Court highlights that in Plaintiffs’ opening brief in
support of their Motion for Leave to Amend, Plaintiffs neglect
to address Rule 16(b)(4)’s good cause standard, merely arguing
that leave to amend is warranted under Rule 15(a) and asserting
that the proposed amendments will allow them to “clear up any
ambiguity concerning [their] claims . . . and to ensure that
their pleading conforms to the evidence.”
(Mot. for Leave to
Amend at 3–4, ECF No. 91). Plaintiffs did not address the good
cause standard until their Reply—after the Officers in their
Opposition explained that Plaintiffs are required to show good
cause before demonstrating that Rule 15(a) is satisfied.
10

Plaintiffs

seek

leave

to

allege

that

the

Officers

are

liable for excessive use of force under a bystander liability
theory

because

they

“took

turns

standing

around

Anderson while they kicked and beat him unconscious.”
First Am. Compl. ¶ 255, ECF No. 91-3).
knew

about

facts

supporting

bystander

Decedent
(Proposed

Plaintiffs, however,
liability

at

least

as

early as December 19, 2014—nearly one and a half years before
Plaintiffs

moved

for

leave

to

amend—when

Edith

Fletcher

testified that the Officers kicked Anderson while he was on the
ground.

(Fletcher Dep. 73:11–75:3, Dec. 19, 2014, ECF No. 77-

3).
Plaintiffs do not identify any reason that prevented them
from

moving

Plaintiffs

to

amend

explain

their

that

they

Complaint
did

months

not

think

ago.

Rather,

amendment

was

necessary because they were relying on the general notion that a
court should liberally allow amended pleadings at all stages of
litigation.

Plaintiffs assert that “given the nature of the

instant litigation,” they “decided to err on the side of caution
and

amend”

chance.”

because

they

“did

not

want

to

leave

anything

to

(Reply to Mot. for Leave to Amend Compl. at 9).

Considering

that

Plaintiffs

knew

about

the

majority

of

their proposed allegations at least a year before they moved for
leave to amend and nothing prevented them from moving to amend
months, or even years, ago, the Court finds Plaintiffs have not
11

acted with diligence.

Moreover, as explained below, this lack

of diligence has already prejudiced the Officers and permitting
Plaintiffs to amend would further prejudice the Officers.
Plaintiffs

argue

there

would

be

no

prejudice

to

the

Officers because the Officers have moved for partial summary
judgment

on

Plaintiffs’

claims

deprivation of medical care.

for

bystander

liability

(See ECF Nos. 79, 80).

and
But,

Plaintiffs fail to recognize that developing facts and claims
during discovery that were completely foreign to their Complaint
and lacking diligence in moving to amend their Complaint has
already prejudiced the Officers by forcing them to move for
partial summary judgment in attempt to mitigate the uncertainty
regarding the claims that Plaintiffs would pursue.
Plaintiffs next contend there would be no prejudice to the
Officers

because

their

proposed

amendments

are

“subtle”—they

merely “clarify” their pre-existing § 1983 claims.
Mot. for Leave to Amend Compl. at 3, 4).
and rejects this characterization.

(Reply to

The Court disagrees

To be sure, § 1983 is the

proper vehicle through which to pursue claims for excessive use
of force during an arrest and deprivation of medical care.
Martin

v.

Gentile,

849

F.2d

863,

865

(4th

Cir.

See

1988).

Plaintiffs, however, take for granted the exceptional breadth of
§ 1983, which permits plaintiffs to sue for alleged violations
of any rights secured by the Constitution and laws of the United
12

States.

42 U.S.C. § 1983.

The Court examines § 1983 claims for

excessive use of force under a completely different standard
than § 1983 claims for deprivation of medical care.

See Graham

v. Connor, 490 U.S. 386, 397 (1989) (explaining that § 1983
claims for excessive use of force during an arrest are properly
asserted

under

the

examine

whether

Fourth
an

Amendment

officer’s

and

conduct

require
was

a

court

to

“objectively

reasonable” under the circumstances); Martin, 849 F.2d at 871
(explaining that § 1983 claims for deprivation of medical care
are

properly

Fourteenth

asserted

Amendment

under

and

the

require

Due
a

Process

Court

to

Clause
examine

of

the

whether

there was a “deliberate indifference to serious medical needs”).
Because the discovery deadline has passed, permitting Plaintiffs
to add a claim for deprivation of medical care at this juncture
would prejudice the Officers by denying them an opportunity to
discover the facts necessary to develop their defense.
Plaintiffs also argue there would be no prejudice to the
Officers because the Officers have been on notice of Plaintiffs’
claims for bystander liability and deprivation of medical care
since January 2016 when Plaintiffs moved for summary judgment on
these claims.

Plaintiffs overlook, however, that January 2016

was several months after the close of discovery, meaning the
Officers had no opportunity, at that time, to pursue and develop
facts enabling them to oppose these claims.
13

Thus, because Plaintiffs were not diligent in moving to
amend, Plaintiffs’ lack of diligence has already prejudiced the
Officers,

and

permitting

Plaintiffs

to

amend

would

further

prejudice the Officers, the Court finds Plaintiffs fail to show
good cause for adding claims to their Complaint.

Accordingly,

the Court will grant in part and deny in part Plaintiffs’ Motion
for Leave to Amend.
B.

Officers’ Motion in Limine
1.

Standard for Admissible Expert Testimony

The Officers move to exclude several opinions rendered by
Plaintiffs’ medical experts.

Under Federal Rule of Evidence

702, before a witness can offer expert testimony, he must be
qualified

as

an

expert

training, or education.”

“by

knowledge,

Fed.R.Evid. 702.

skill,

experience,

“The fact that a

proposed witness is an expert in one area, does not ipso facto
qualify

him

to

testify

as

an

expert

in

all

related

areas.”

Shreve v. Sears, Roebuck & Co., 166 F.Supp.2d 378, 391 (D.Md.
2001); see Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010)
(“[S]imply because a doctor has a medical degree does not make
him qualified to opine on all medical subjects.”).

Similarly,

“an expert witness may not offer an opinion where the subject
matter goes beyond the witness’s area of expertise.”
Swiney,

23

F.Supp.3d

596,

611

(D.Md.

2014);

see

Young v.
Steele

v.

Kenner, 129 F.App’x 777, 781 (4th Cir. 2005) (concluding that
14

district

court

did

not

abuse

its

discretion

in

finding

neurologist was not qualified to offer expert opinion in field
of neuropsychology because neurologist would have been “outside
his area of expertise”); see also Jackson v. United States, No.
5:08-03876-MBS, 2010 WL 2228378, at *7 (D.S.C. May 28, 2010)
(concluding that neuropsychologist was not qualified to testify
as to the standard of care for pediatricians).

Also, “[w]hile

the fit between an expert’s specialized knowledge and experience
and the issues before the court need not be exact,” Shreve, 166
F.Supp.2d at 392, an expert’s opinion is relevant “only to the
extent the expert draws on some special skill, knowledge or
experience to formulate that opinion,” id. at 393 (quoting Ancho
v. Pentek Corp., 157 F.3d 512, 518 (7th Cir. 1998)).
Under Rule 702, a witness who has been qualified as an
expert

may

testify

in

the

form

of

an

opinion

if

(1)

“the

expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine
sufficient

a

fact
facts

in

issue,”

or

data”

(2)

and

“the

“is

testimony

the

product

is

based

of

on

reliable

principles and methods, and (3) “the expert has reliably applied
the

principles

and

methods

to

the

facts

of

the

case.”

Helpfulness to the trier of fact is the “touchstone” of Rule
702.

Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (quoting

Friendship Heights Assocs. v. Koubek, 785 F.2d 1154, 1159 (4th
15

Cir. 1986)).

Expert testimony “is presumed to be helpful unless

it concerns matters within the everyday knowledge and experience
of a lay juror.”

Id. (citing Persinger v. Norfolk & W. Ry. Co.,

920 F.2d 1185, 1188 (4th Cir. 1990)).
expert

testimony

concerning

everyday

While the admission of
matters

is

usually

harmless, the Court must ensure that an expert’s evaluation of
the commonplace does not “supplant a jury’s independent exercise
of common sense.” Id. (quoting Scott v. Sears, Roebuck & Co.,
789 F.2d 1052, 1055 (4th Cir. 1986)).
To

be

reliable.

admissible,

expert

opinions

must

be

relevant

and

See Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 589 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149
(1999) (extending rule in Daubert to all expert testimony).

An

expert opinion is relevant when it “is sufficiently tied to the
facts

of

the

case.”

MCI

Commc’ns

Servs.,

Inc.

v.

Am.

Infrastructure-MD, Inc., No. GLR-11-3767, 2013 WL 4086401, at *3
(D.Md. Aug. 12, 2013) (quoting Daubert, 509 U.S. at 591).
reliable,

an

“expert

opinion

must

be

based

on

To be

scientific,

technical, or other specialized knowledge and not on belief or
speculation, and inferences must be derived using scientific or
other valid methods.”

Oglesby v. Gen. Motors Corp., 190 F.3d

244, 250 (4th Cir. 1999).

“Reliability of specialized knowledge

and methods for applying it to various circumstances may be
indicated by testing, peer review, evaluation of rates of error,
16

and general acceptability.”
court

reviews

when

Id.

determining

Regardless of the factors a
whether

an

expert

opinion

is

reliable, the court must “ensure that ‘an expert, whether basing
his testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor
that characterizes the practice of an expert in the relevant
field.’”

Young, 23 F.Supp.3d at 611 (quoting Kumho Tire, 526

U.S. at 152).

Indeed, the Court “should meticulously focus on

the expert’s principles and methodology.”

Id. (quoting McDowell

v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004)).
The party offering the expert witness has the burden of
showing, by a preponderance of the evidence, that the expert’s
testimony is admissible.

Cooper v. Smith & Nephew, Inc., 259

F.3d 194, 199 (4th Cir. 2001).

The Court has “broad discretion”

in determining whether expert testimony is admissible.

Shreve,

166 F.Supp.2d at 391 (citing Cooper, 259 F.3d at 199–200).
2.

Analysis

The

Officers

contend

the

following

opinions

rendered

by

Plaintiffs’ experts Lamont Smith, M.D. (“Dr. Smith”) and Dianne
Miller, RN (“Miller”) are inadmissible as a matter of law: (1)
Anderson’s ruptured spleen could not have been caused by only
the Takedown; (2) the Officers misled the paramedics; and (3)

17

misleading the paramedics contributed to Anderson’s death.

The

Court will review these opinions in turn.5
i.

The Etiology6 of Anderson’s Ruptured Spleen

In his expert report, Dr. Smith opined that “the assault(s)
which caused the injuries that led to . . . Anderson’s death
were so severe that they could have neither been caused by a
single fall to the ground nor a slam to the ground during a
take-down by one of the [Officers].”
1, ECF No. 78-17).

(Mot. in Lim. Ex. O, at

He further opined that “Anderson most likely

suffered a forceful assault—or assaults—to his torso in addition
to the impact created by being taken down by the [O]fficers.”
(Id. at 4).

Dr. Smith also testified that Anderson’s injuries

were “very consistent with multiple trauma” and the Takedown
alone “would not have caused [Anderson’s] injuries.”

(Smith

Dep. 16:15–21, 42:19–43:1, June 19, 2015, ECF No. 78-18).

5

He

The Court recognizes the second and third opinions in the
preceding list relate to a claim for deprivation of medical
care. Although the Court will deny Plaintiffs’ Motion for leave
to add such a claim to their Complaint, the Court will
nevertheless determine whether these opinions are admissible
because they are relevant to the Officers’ Motion for Partial
Summary Judgment on any Claim for Alleged Deprivation of Medical
Care.
6
Etiology is “the study or theory of the factors that cause
disease and the method of their introduction to the host; the
causes or origin of a disease or disorder.”
Clarke v.
Schofield, 632 F.Supp.2d 1350, 1355 (M.D.Ga. 2009) (quoting
Dorland’s Illustrated Medical Dictionary, at 627 (29th ed.
2000)).
18

further

testified

that

it

was

punched or kicked repeatedly.

“[l]ikely”

that

Anderson

was

(Id. at 53:3–6).

The Officers argue Dr. Smith is not qualified to render
these opinions because he has no experience with or expertise in
determining the

etiology

of a medical condition.

The Court

agrees.
Dr. Smith is an experienced traumatologist and intensivist.
He has been practicing in that capacity for his entire medical
career, which spans approximately fifteen years.

(Mot. in Lim.

Ex. M, at 3–4, ECF No. 78-15); (Smith Dep. at 24:16–17).

In his

deposition, Dr. Smith described the role of a traumatologist and
an

intensivist.

A

traumatologist

“does

the

initial

stabilization” of a patient that has experienced trauma such as
a car accident or gun shot.
traumatologist

stabilizes

a

(Smith Dep. at 34:12).
trauma

patient,

the

After a

patient

is

transferred to an intensive care unit “where an intensivist will
continue their care . . . and help with the rest of the lifesaving

process.”

(Id.

at

34:17–20).

An

intensivist

“physician who treats critically ill patients.”
7).

is

a

(Id. at 30:4–

Dr. Smith contends that his “training and experience allow

[him] to practice excellent critical care in any medical or
surgical environment.”

(Mot. in Lim. Ex. M at 1).

Given his background, there is little question that Dr.
Smith would qualify in a medical malpractice case as an expert
19

on the standard of care for a traumatologist, intensivist, or
emergency room physician in treating a critical care patient.
Here, however, Dr. Smith offers opinions on the

etiology

of

Anderson’s injuries, and etiology has never been a part of Dr.
Smith’s practice.
regarding

the

When describing the basis for his opinions

etiology

of

Anderson’s

injuries,

Dr.

Smith

conceded that he has only “seen patients” and “take[n] care of
patients” with injuries like Anderson’s.
13).
as

(Smith Dep. at 43:12–

But, diagnosing and treating a condition are not the same

determining

the

cause

of

a

condition.

See

Clarke,

632

F.Supp.2d at 1358 (“[D]iagnosing a disease is not the same as
determining the etiology of the disease.”).

Moreover, Dr. Smith

has no training or experience in forensic pathology.7

It is not

surprising, then, that Dr. Smith has never been qualified as an
expert on causation in a wrongful death case.

(Smith Dep. at

6:5–7).
Because

Dr.

Smith

lacks

“knowledge,

skill,

experience,

training, or education,” Fed.R.Evid. 702, in etiology, the Court
concludes he is not qualified as an expert to offer opinions on
the etiology of Anderson’s injuries.

See Clarke, 632 F.Supp.2d

at 1356–60 (explaining that emergency room physician was not

7

Forensic pathology “seeks through detailed examination of
a decedent’s body to reconstruct the cause and manner of death.”
United States v. Vega-Penarete, No. 91-5902, 1992 WL 212142, at
*2 (4th Cir. 1992).
20

qualified as an expert on the etiology of decedent’s deep vein
thrombosis

in

wrongful

death

case

because

physician

only

diagnosed and treated this condition in his practice); Shreve,
166 F.Supp.2d at 393 (concluding that witness did not qualify as
an expert on the safe design and operation of snow throwers
because although witness was an “eminently qualified mechanical
engineer and professor of mechanical engineering,” he “had no
professional experience with respect to the design, manufacture,
operation, or safety of outdoor power equipment, including snow
throwers”).

Accordingly, the Court will grant the Officer’s

Motion and exclude any opinions from Dr. Smith on the etiology
of Anderson’s injuries.8
ii.

The Officers Misled the Paramedics

Dr. Smith and Miller both opine that the Officers misled
the paramedics by informing them that Anderson was suffering
from a drug overdose rather than physical trauma.
8

(Mot. in Lim.

In her expert report, Miller did not opine as to the
etiology of Anderson’s fatal injuries. Nevertheless, during her
deposition, she testified that she “had a problem with” some of
the conclusions of Dr. Jonathan Arden, the Officers’ expert on
medical causation. (Miller Dep. 170:21, July 27, 2015, ECF No.
78-19).
She also opined as to what caused a soft tissue
hemorrhage on Anderson’s left temporal muscle. (Id. at 172:18–
20).
The Officers move to exclude any expert opinions from
Miller on the etiology of Anderson’s injuries because she is not
qualified to offer those opinions.
The Court finds that like
Dr. Smith, Miller does not possess the requisite “knowledge,
skill, experience, training, or education,” Fed.R.Evid. 702, to
qualify as an expert in etiology.
Accordingly, the Court will
exclude any opinions from Miller on the etiology of Anderson’s
injuries.
21

Ex. N [“Dr. Smith Report”], at 4, ECF No. 78-16); (id. Ex. S
[“Miller Report”], at 1, ECF No. 78-21).

The Officers argue

these opinions should be excluded because they are not reliable.
The Court agrees.
First, Plaintiffs opinions are not based on scientific or
technical knowledge, which means they must be based on some
specialized
Oglesby,

knowledge

190

demonstrate

F.3d

that

to

at

Dr.

be

reliable

250.
Smith

expert

Plaintiffs,
or

Miller

opinions.
however,

has

any

do

See
not

specialized

knowledge on BPD training or protocols regarding how to assess
the medical condition of an arrestee or relay information to
paramedics.

As

such,

Dr.

Smith’s

and

Miller’s

opinions

represent nothing more than their subjective beliefs.

Second,

Dr. Smith and Miller both rely on the paramedics’ “Prehospital
Care

Report,”

which

states

that

the

paramedics’

Impression” was “Withdrawal/Overdose Drugs.”
K, at 1, ECF No. 78-13).

“Primary

(Mot. in Lim. Ex.

Dr. Smith and Miller, however, ignore

other facts in the record including that the very same report
states

that

Anderson

suffered

a

“[b]lunt”

injury

from

a

“fall[],” (id. at 2), and the Officers told the first paramedic
on the scene that Anderson had been tackled, (McNulty Dep. 70:2–
4, Oct. 9, 2015, ECF No. 78-11).

Thus, Dr. Smith’s and Miller’s

opinions

than

amount

to

little

more

unsupported

speculation.

Third, Plaintiffs do not identify any principles or methods that
22

Dr. Smith and Miller applied when developing their opinions.
The

Court,

therefore,

finds

that

Dr.

Smith’s

and

Miller’s

that

Dr.

Smith’s

and

Miller’s

opinions are not reliable.
The

Court

further

finds

opinions would not assist the trier of fact.
finding,

that

the

Officers’

conclusion

Assuming, without
that

Anderson

was

suffering from an overdose belies what the Officers actually
knew about Anderson’s condition when the paramedics arrived, a
jury could rely on its everyday knowledge and experience to
conclude that the Officers misled the paramedics.
must

not

allow

Dr.

Smith’s

and

Miller’s

The Court

opinions

that

the

Officers misled the paramedics to “supplant a jury’s independent
exercise

of

common

sense.”

Kopf,

993

F.2d

at

377

(quoting

Scott, 789 F.2d at 1055).
Accordingly, because Dr. Smith’s and Miller’s opinions are
not reliable and would not assist the trier of fact, the Court
will grant

the Officers’ Motion and exclude Dr. Smith’s and

Miller’s opinions that the Officers misled the paramedics.
iii. Misleading
the
Anderson’s Death
Dr. Smith
paramedics

to

Paramedics

Contributed

and Miller both opine that by misleading
believe

Anderson

was

suffering

from

a

to
the
drug

overdose, the Officers contributed to Anderson’s death because
the medical personnel at JHH

were not initially prepared to

23

treat Anderson as a trauma patient.

(Dr. Smith Report at 4);

(Miller

opines

Report

personnel

at

at

JHH

1).
known

Dr.
from

Smith
the

outset

that

that

had

medical

Anderson

was

a

trauma patient, “[a]n operating room would have been prepared
and a surgical team immediately mobilized” and “Anderson would
never have been taken to a triage area.”
4).

(Dr. Smith Report at

Dr. Smith further opines that “there is a good chance that

[Anderson’s]

life

may

very

well

have

been

saved

with

the

appropriate information being given, the appropriate diagnosis
being made, and the appropriate and expeditious treatment being
administered.”

(Id. at 4—5).

misinformation

the

diagnosis

of

delay[ed]

life

paramount.”

Officers

[Anderson’s]
saving

According to Miller, the alleged
provided

medical

“delay[ed]

emergency

interventions

of

and

which

accurate

consequently
surgery

was

(Miller Report at 1).

The Officers argue the Court should exclude these opinions
because they are not reliable and would not assist the trier of
fact.

The Court agrees.
First, Plaintiffs present no evidence that Dr. Smith and

Miller relied on any scientific, technical, or other specialized
knowledge regarding probability of death or chance of survival
when an emergency room staff begins treating a trauma patient as
an overdose patient.
Smith

and

Miller

Second, Plaintiffs fail to show that Dr.

relied

on

any
24

methodology

whatsoever

in

developing their opinions.

As such, the Court has no way of

determining whether Dr. Smith and

Miller applied the same level

of intellectual rigor as an expert in the area of determining
chances of survival or whether their methodology or technique,
assuming

they

actually

applied

one,

is

generally

accepted.

Third, neither Dr. Smith nor Miller identifies any empirical
data,

study,

or

Dr.

Smith

Fourth,

literature
and

that

Miller

supports

opine

that

their
had

opinions.

JHH

medical

personnel immediately treated Anderson as a trauma patient as
opposed

to

an

overdose

chance of survival.
earlier

treatment

patient,

he

would

have

had

a

better

At bottom, Dr. Smith and Miller assert that
is

preferable

to

later

treatment.

This

opinion, however, would not assist the trier of fact because it
is already within the common knowledge of the average juror.
See McDowell v. Brown, 392 F.3d 1283, 1299–300 (11th Cir. 2004)
(concluding

that

district

court

properly

excluded

expert’s

testimony because his “the earlier, the better” theory was “well
within common knowledge that would be obvious to the average
juror”).
Thus, the Court concludes that Dr. Smith’s and Miller’s
opinions

that

misleading

the

paramedics

contributed

to

Anderson’s death are not reliable and would not assist the trier

25

of fact.

Accordingly, the Court will grant the Officers’ Motion

and exclude these opinions.9
C.

Motions for Summary Judgment
1.

Standard of Review

In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the nonmovant, drawing
all justifiable inferences in that party’s favor.

Ricci v.

DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158–59 (1970)).
when

the

materials

movant
in

demonstrates,

the

record,

Summary judgment is proper

through

including

“particular

depositions,

parts

of

documents,

electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other
materials,” that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P.

56(a),

(c)(1)(A).

Once

a

motion

for

summary

judgment is properly made and supported, the nonmovant has the
burden

of

showing

that

a

genuine

9

dispute

of

material

fact

In their Opposition to Motion in Limine (ECF No. 85),
Plaintiffs request that the Court strike several documents the
Officers reference in their Motion in Limine, arguing they
contain inadmissible hearsay. Because the Court did not rely on
any of these documents in ruling on the Motion in Limine, the
Court will deny Plaintiffs’ request as moot.
26

exists.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586–87 (1986).
A “material fact” is one that might affect the outcome of a
party’s case.

Anderson, 477 U.S. at 248; see also JKC Holding

Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th
Cir. 2001)).

Whether a fact is considered to be “material” is

determined by the substantive law, and “[o]nly disputes over
facts

that

governing

might
law

judgment.”

affect

will

the

outcome

properly

of

preclude

the

the

suit

entry

under
of

the

summary

Anderson, 477 U.S. at 248; accord Hooven-Lewis, 249

F.3d at 265.

A “genuine” dispute concerning a “material” fact

arises when the evidence is sufficient to allow a reasonable
jury

to

return

a

verdict

in

the

nonmoving

party’s

favor.

Anderson, 477 U.S. at 248.
Additionally,

when

a

party

moves

for

partial

summary

judgment, the Court “may enter an order stating any material
fact . . . that is not genuinely in dispute and treat that fact
as established in the case.”

Fed.R.Civ.P. 56(g).

27

2.

Analysis
i.

To

Officers’ Motions for Partial Summary Judgment on
Alleged Kicking
and Any Claim for Alleged
Deprivation of Medical Care10

prevail

on

their

claims

for

constitutional

torts,

Plaintiffs must demonstrate that there was an affirmative causal
link between the Officers’ breach of their constitutional duties
and Anderson’s death.

Slakan v. Porter, 737 F.2d 368, 376 (4th

Cir. 1984) (citing Rizzo v. Goode, 423 U.S. 362 (1976)).
causal link “is analogous to proximate cause.”
13 F.3d 791, 800 (4th Cir. 1994).

This

Shaw v. Stroud,

The Court looks to state law

to determine what is required to show proximate cause.

See

Watson v. Adams, No. 4:12-CV-03436-BHH, 2015 WL 1486869, at *5
(D.S.C. Mar. 31, 2015) (quoting Barnes v. Anderson, 202 F.3d
150, 158 (2d Cir. 1999)).
Under
tortious

Maryland

conduct

injuries,

the

law,

was

the

plaintiff

to

establish

proximate
must

show

between the conduct and the injuries.

that

the

defendant’s

the

plaintiff’s

“reasonable

connection”

cause
a

of

Wash. Metro. Area Transit

Auth. v. Reading, 674 A.2d 44, 52 (Md.Ct.Spec.App.1996).
reasonable

connection

exists

when

10

“‘there

is

a

A

complete

Although the Court will deny Plaintiffs’ Motion for leave
to add allegations to their Complaint supporting a claim for
deprivation of medical care, the Court will resolve the
Officers’ Motion for Summary Judgment on Any Claim for Alleged
Deprivation of Medical Care in the event that at trial
Plaintiffs attempt to raise a claim for deprivation of medical
care.
28

continuance and unbroken sequence between the act complained of
and the act finally resulting in the injury [or death], so that
one

may

be

regarded

by

persons

of

ordinary

logical and probable cause’ of the injury.”

judgment

as

the

Osunde v. Lewis,

281 F.R.D. 250, 260–61 (D.Md. 2012) (quoting Vito v. Sargis &
Jones,

Ltd.,

Furthermore,
complicated

672
when

issues

A.2d

129,

139

determining
of

medical

(Md.Ct.Spec.App.

proximate
causation,

required to prove causation.

causation
expert

1996)).
involves

testimony

is

Id. at 261; accord Giant Food,

Inc. v. Booker, 831 A.2d 481, 488 (Md.Ct.Spec.App. 2003).
Here, Dr. Smith and Miller are the only witnesses who opine
that kicking Anderson while he was under arrest and depriving
him

of

medical

care

by

misleading

the

paramedics

Anderson’s ruptured spleen and eventual death.

caused

As the Court

concluded above, however, Dr. Smith’s and Miller’s opinions are
inadmissible as a matter of law.
other

expert

testimony

Plaintiffs fail to present any

regarding

causation.

The

Court,

therefore, will grant the Officers’ Motions for Partial Summary
Judgment.
ii.

Plaintiffs’ Motion for Summary Judgment11

11

Because the Court has already concluded that it will
grant the Officers’ Motions for Partial Summary Judgment on
Alleged Kicking and Any Claim for Deprivation of Medical Care,
the Court will only review Plaintiffs’ Motion for Summary
Judgment as it pertains to the Takedown.
29

Plaintiffs argue they are entitled to judgment as a matter
of law that the Takedown was an excessive use of force and the
Officers are not entitled to qualified immunity.

Claims for

excessive use of force during an arrest are analyzed under the
Fourth Amendment.12

Elliott v. Leavitt, 99 F.3d 640, 642 (4th

Cir. 1996) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989).
The Court applies a standard of objective reasonableness, under
which

“the

question

is

whether

the

officers’

actions

are

‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.”

Graham,

490

U.S.

at

397.

When

applying

this

standard, the Court must pay “careful attention to the facts and
circumstances of each particular case, including the severity of
the

crime

at

issue,

whether

the

suspect

poses

an

immediate

threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by

12

Plaintiffs assert that the Officers’ use of force in
arresting Anderson violated both the Fourth Amendment and
Article 26 of the Maryland Declaration of Rights.
These
provisions are construed in pari materia.
Dent v. Montgomery
Cty. Police Dep’t, 745 F.Supp.2d 648, 661 (D.Md. 2010) (citing
Richardson v. McGriff, 762 A.2d 48, 56 (Md. 2000)).
As such,
the Court will not separately review whether the Officers’ use
of force violated Article 26.
See id. at 661–62 (explaining
that because the Fourth Amendment and Article 26 are construed
in pari materia, “the disposition of Plaintiff’s § 1983 claim
under the Fourth Amendment ‘dictates the same result on her
Article 26 claim’” (quoting Mazuz v. Maryland, 442 F.3d 217, 231
(4th Cir. 2006)).
30

flight.”

Id. at 396.

The Court may also consider the extent of

the plaintiff’s injuries.
527 (4th Cir. 2003).

See Jones v. Buchanan, 325 F.3d 520,

But, this factor is not alone dispositive

of whether an excessive use of force has occurred.
527–28

(“The

‘question

is

whether

the

See id. at

totality

of

the

circumstances justified a particular sort of . . . seizure.’”
(quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985))).
Though the Court examines uses of force that have already
occurred, the Court must focus “on the

circumstances at the

moment force was used and on the fact that officers on the beat
are

not

often

afforded

the

luxury

of

armchair

reflection.”

Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing
Greenidge v. Ruffin,
Indeed,

the

Court

927 F.2d 789, 791–92 (4th Cir. 1991)).
“may

not

employ

‘the

20/20

vision

of

hindsight,’” but rather “must make ‘allowance for the fact that
police officers are often forced to make split-second judgments—
in

circumstances

that

are

tense,

uncertain,

and

rapidly

evolving.’” Id. (quoting Graham, 490 U.S. at 396–97).
The

doctrine

of

qualified

immunity

protects

government

officials “from liability for civil damages insofar as their
conduct

does

not

violate

clearly

established

statutory

or

constitutional rights of which a reasonable person would have
known.”
Court

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
considers

two

inquiries
31

when

determining

whether

The
a

government

official

is

entitled

to

qualified

immunity:

(1)

“whether the facts that a plaintiff has alleged . . . or shown .
. . make out a violation of a constitutional right,” Pearson v.
Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533
U.S. 194, 201 (2001); and (2) “whether the right at issue was
‘clearly

established’

at

the

time

of

defendant’s

misconduct,” id. (quoting Saucier, 533 U.S. at 201).

alleged
The Court

has discretion to determine which of these inquiries to address
first.

Id. at 236.

The answer to both of these inquiries,

however, must be in the affirmative for a plaintiff to prove a
defendant is not entitled to qualified immunity.

See Henry v.

Purnell, 501 F.3d 374, 377 (4th Cir. 2007) (quoting Batten v.
Gomez, 324 F.3d 288, 293–94 (4th Cir. 2003)).

Thus, if the

Court elects to first consider whether the plaintiff has shown a
violation of a constitutional right and the Court determines he
has not, the defendant “is hardly in need of any immunity and
the analysis ends right then and there.”

Abney v. Coe, 493 F.3d

412, 415 (4th Cir. 2007).
Plaintiffs present the testimony of several eyewitnesses to
the Takedown.

Keith Johnson maintains that Anderson did not

engage in a CDS transaction outside the liquor store, but rather
obtained

a

loose

cigarette

from

a

neighborhood

acquaintance.

(Johnson Dep. 12:6–12, Feb. 16, 2015, ECF No. 77-9).

Johnson

testified

of

that

he

alerted

Anderson
32

to

the

presence

the

police, at which point Johnson and Anderson walked away from the
liquor store in separate directions.

(Id. at 12:13–20).

After

a police vehicle pulled up alongside Anderson, an officer jumped
out of the back of the vehicle and ran behind Anderson without
identifying himself or saying anything.

(Id. at 12:20–13:3).

The officer then “grabbed Mr. Anderson in a bear hug and he
slammed him on the ground.

(Id. at 13:3–5).

Johnson stated

that the officer lifted Anderson almost two feet off the ground
before slamming him down.

(Id. at 31:20–32:1).

Johnson also

testified that Anderson “hit [the ground] pretty hard,” with his
head contacting the ground first,

(id.

at

32:2–10),

and the

officer executing the Takedown fell on top of Anderson with most
of the officer’s weight, (id. at 32:21–33:2).
Officer Strohman acknowledges that he was the officer that
executed the Takedown.

He, however, offers an utterly different

account of the Takedown and the events that precipitated it.
According to Strohman, the Officers were patrolling an area in
East

Baltimore

transaction.”

when

they

saw

Anderson

(Strohman Dep. at 44:2–4).

“involved

in

a

drug

When Anderson noticed

the patrol vehicle, he began walking away toward a vacant lot.
(Id. at 44:4–7).

As the Officers pulled their patrol vehicle

near

lot

the

vacant

to

pursue

Anderson,

Officer

Strohman

identified himself as a police officer and ordered Anderson to
stop, but Anderson continued walking away.
33

(Id. at 50:13–15,

51:8–10).
again

Officer Strohman then exited the patrol vehicle and

identified

himself

Anderson to stop.

as

a

police

officer

(Id. at 44:8, 50:15–16).

and

ordered

This time, while

still continuing to walk away from Officer Strohman, Anderson
“briefly

turned

retrieved

a

around,

plastic

and

bag

started to ingest them.”

then

he

containing

reached

in

suspected

his

pocket,

narcotics

and

(Id. at 44:8–11, 51:8–10, 52:21–53:4).

At that point, Officer Strohman “came up from behind [Anderson]”
and “kind of bear hugged him from behind over top of his arms to
prevent

him

from

ingesting

the

drugs.”

(Id.

at

44:12–14).

After Anderson “briefly struggled by just widening his stance,”
Officer Strohman “leaned back to get him off balance, and [they]
both fell to the side.”

(Id. at 44:15–17).

Officer Strohman

testified that he lifted Anderson only two-to-three inches off
the ground before he and Anderson fell to the ground.
58:12–14).

(Id. at

He also testified that he did not fall directly on

top of Anderson.

(Id. at 58:18–19).

The parties present conflicting opinions from their use-offorce

experts.

According

to

Plaintiffs’

expert,

Dr.

Tyrone

Powers, the Takedown “would be excessive under any scenario,
whether it was to stop [Anderson] from distributing drugs, which
he

wasn’t

doing

at

the

time,

or

whether

[Anderson] from further harming himself.”
18, June 19, 2015, ECF No. 77-16).
34

it

was

to

keep

(Powers Dep., 30:14–

Dr. Powers also testified

that the Takedown was excessive because officers are not trained
to

drive

an

arrestee

into

already under control.

the

ground

when

the

arrestee

is

(Id. at 29:14–17).

Not surprisingly, the Officers’ expert, Charles J. Key, Sr.
offers the opposite opinion.
objectively

reasonable

According to Key, the Takedown was

because

Officer

Strohman

had

probable

cause to believe Anderson was engaging in the felony crime of
distribution of narcotics and Anderson defied Officer Strohman’s
repeated orders to “stop” by walking away, attempted to swallow
narcotics, and actively resisted Officer Strohman by spreading
his legs when grabbed.

(Defs.’ Opp’n to Pls.’ Mot. Summ. J. Ex.

1, at 13–19, ECF No. 84-1).

Key also asserted that it was

objectively reasonable for Officer Strohman to consider Anderson
a serious threat to the Officers’ safety because BPD officers
are

“trained

should

that

consider

believe

is

drugs

any

selling

person
drugs

handcuffed and searched.”
In

sum,

the

and

facts

guns
who

to

go

they

be

together
have

armed

and

that

probable

until

they
to

person

that

cause

is

(Id. at 16–18).
and

circumstances

of

the

Takedown,

including the severity of Anderson’s crime and whether Anderson
posed

an

immediate

threat

to

the

safety

of

the

Officers

or

actively resisted or evaded arrest, are disputed.

Viewing the

facts

light

and

circumstances

of

the

Takedown

in

the

most

favorable to the Officers, Officer Strohman restrained Anderson
35

in a bear hug and lifted Anderson a couple inches off the ground
to

get

Anderson

off

balance

without

Anderson

landing

before

directly

the

on

two

top

of

fell

to

ground

Anderson.

The

Takedown occurred after Anderson engaged in a criminal narcotics
transaction, ignored two orders to cease walking away from the
police, began ingesting suspected narcotics, and resisted arrest
by spreading his legs when Officer Strohman grabbed him from
behind.

The Court finds that a reasonable jury examining these

facts could find that the Takedown was not an excessive use of
force under the circumstances.
Thus,

there

is

a

genuine

dispute

of

material

fact

and

Plaintiffs are not entitled to judgment as a matter of law that
the Takedown was an excessive use of force.

As such, Plaintiffs

are also not entitled to judgment as a matter of law that the
Officers are not protected by qualified immunity.
Coe,

493

F.3d

at

415.

Accordingly,

the

Court

See Abney v.
will

deny

Plaintiffs’ Motion as to their claims for excessive use of force
and common law battery.13

See Rowland v. Perry, 41 F.3d 167, 174

13

Plaintiffs also contend that Officer Vodarick is liable
on a theory of bystander liability for Strohman’s excessive use
of force during the Takedown.
Because the Court has already
concluded that there is a dispute regarding the legality of the
Takedown, the Court need not explore whether Officer Vodarick is
liable for excessive use of force. Nonetheless, even assuming,
without finding, the Takedown was an excessive use of force,
Plaintiffs have not demonstrated that the elements for bystander
liability are satisfied.
“To succeed on a theory of bystander
liability, a plaintiff must demonstrate that a law-enforcement
36

(4th Cir. 1994) (explaining that a state law claim for battery
is subsumed within a federal claim for excessive use of force).
III. CONCLUSION
For the foregoing reasons, the Court will GRANT in part and
DENY in part Plaintiffs’ Motion for Leave to Amend Complaint
(ECF No. 91) and DENY Plaintiffs’ Motion for Summary Judgment
(ECF No. 77).
Shayner

The Court will direct the Clerk to substitute

Anderson

for

Edith

Fletcher

representative of Anderson’s estate.

as

the

personal

The Court will also GRANT

the Officers’ Motion in Limine to Exclude Certain Opinions of
Plaintiffs’ Medical Experts (ECF No. 78) and Motions for Partial
Summary

Judgment

on

the

Issue

of

Whether

Alleged

Kicking

Contributed to the Death of Anthony Anderson (ECF No. 79) and on
Any Claim for Alleged Deprivation of Medical Care (ECF No. 80).
A separate Order follows.
Entered this 27th day of July 2016
/s/
____________________________
George L. Russell, III
United States District Judge

officer ‘(1) [knew] that a fellow officer [was] violating an
individual’s constitutional rights; (2) ha[d] a reasonable
opportunity to prevent the harm; and (3) cho[se] not to act.’”
Stevenson v. City of Seat Pleasant, 743 F.3d 411, 417 (4th Cir.
2014) (alterations in original) (quoting Randall v. Prince
George’s Cty., 302 F.3d 188, 203 (4th Cir. 2002)).
Plaintiffs
present no evidence to satisfy any of these elements.
37